Canonical Marriage Research Articles

Canonical Marriage According to Stefan Wyszyński Based on Publications in “Ład Boży”

This article is an analysis of sixteen texts written by Stefan Wyszyński, founder and first editor-in-chief of the weekly “Ład Boży”, which were published in the author’s series “Ład w myślach”. Wyszyński published in-depth and thoughtful studies on ecclesiastical marriage law in the weekly, under various pseudonyms. The reason for this was the promulgation of the Decree of 25 September 1945 Marriage Law, which implemented compulsory civil weddings for all Polish citizens and legally permitted divorce. Wyszyński, using the teaching of the Popes, in particular Pius XI, and the Polish Episcopate, warned the Christian faithful of the dangers of ideologies striking at the institution of marriage, defended it and showed the way forward.

Marital Unity vs. Property Separation of Spouses in light of Canon Law and Civil Law

The article reflects on the validity of canonical marriage with respect to separation of property determined by prospective spouses under Polish law by way of the so-called prenuptial agreement. The analysis of the norms of Polish law regulating the separation of property and seeking corresponding norms in canon law are intended to answer whether a prenuptial agreement made before marriage can constitute an exclusion of one of the aspects of the community of life and thus may have a probative value in a nullity case. The present analysis affords the conclusion that it is not the prenuptial agreement, but rather the intention with which the prospective spouses concluded it that determines the validity of canonical marriage. Indeed, signing such an agreement may sometimes be objectively justified, legitimate or even advisable. However, if it demonstrates a party’s unwillingness to build marital unity, it will be a reason for declaring the marriage invalid on at least three counts: 1) as exclusion of conjugal indissolubility (bonum sacramentum), 2) as incapacity to assume the essential obligations of marriage, and 3) as exclusion of the good of the spouses (bonum coniugum).

A 17. századi protestáns természetjogászok családképe

The history of the development of the matrimonial law is a particularly useful tool for researching and comparing the biblical and Roman law roots of European legal culture. In Western Christianity, the (essential elements of) canonical marriage law had been unified by the second decade of the 13th century. However, the Protestant movements that developed in the first half of the 16th century and their denominational marriage law system led to further fragmentation, which has essentially continued to the present day, notwithstanding the fact that the rise of civil marriage and the secularisation of the law of dissolution in the 19th and 20th centuries meant that denominational marriage law no longer had any civil legal force. The most appropriate method for a historical comparison of Protestant ecclesiastical marriage law is to first consider the doctrines of the founders of the dominant movements on the institution of marriage, focusing on the differences that constituted a breaking point in relation to medieval canon law on marriage. In the Protestant regions of Europe, hundreds of secular (state, provincial and municipal) laws on the marriage law had already been enacted by the 16th century, and their common feature, in addition to the theological background mentioned above, was that they drew on biblical and Roman legal roots, while retaining elements of traditional customary law. In this overview, I will first introduce the Protestant understanding of the virtues of marriage through the example of Martin Luther and Jean Calvin, and then examine how the generation of natural law scholars who followed them, notably Hugo Grotius and John Selden, thought about the marriage bond on this basis.

Problemy integracii norm pravoslavnogo kanonicheskogo prava v sferu brachno-semejnyh otnoshenij v tradicionnom osetinskom obshchestve (pervaya polovina XIX v.)

The article explores the impact of the canonical marriage law of the Russian Orthodox Church on the socio-cultural life in traditional Ossetian society. The article describes the activities of the church that influenced the institution of the family in the context of the post - reform transformation. The results of the work are of particular value for further research and understanding of the transformational processes in all areas of the Ossetian society in the 19th century, which became the basis for revising some foundations in the context of marriage and family regulation.

"A chiare lettere - Confronti” • A proposito di guerra o pace ai tribunali ecclesiastici esistenti in Italia. Quale cultura di riforme organiche sta dietro l’attuale pontificato?

SOMMARIO. 1. Preambolo: perseverare diabolicum? - 2. (segue) I tribunali regionali nella attuazione del regime concordatario, in Italia - 3. Ancora in tema di competenza matrimoniale dell’ordinario diocesano. Intermezzo - 4. Corollari di principio in tema di giurisdizione penale e/o amministrativa - 5. Problematicità di una transizione contraddittoria, a ogni livello - 6. (segue) Dalla frammentazione feudale all’armonia di un moderno ordinamento giudiziario.
 Regarding peace of war to the italian ecclesiastical courts. Which is the methodical reform background of pope Francis?
 ABSTRACT: The accentuated tendency of the part of the Vatican (MP Mitis judex) to express a preference for the pastoral attributions of the diocesan bishop in terms of judgment of nullity of canonical marriage, in competition with those of the interdiocesan ecclesiastical tribunals created for the implementation of the concordat regime in Italy (MP Qua cura), could propose in this matter, after the Gospodinoff case (Constitutional Court, dec. N. 1/77) and the Pellegrini case (European Court of Human Rights, sentence 20 July 2001), the risk of a further vulnus to the principles of due process, on the other hand recently renforced in the Italian constitutional order. In dwelling on this inconvenience, the Author observes that the Catholic Church expresses with this, once again, its serious cultural and political delay in relation to the modern systems with which interacts ; and wonders why the Holy See has not decided by now to abandon the institutes and doctrines of ecclesiastical public law with which, starting from the 16th-17th centuries, with intransigence worthy of the better cause is has too often continued to feed the claim to keep on regulate relations with the political authorities on the models , now obsolete and perishable, of the Christian regime. The Author takes the opportunity to indicate how, conversely, the model of the interdiocesan tribunals, even if imperfect, can and should be generalized, in order to begin to solve the set of problems that the lack of modernization of the canonical system proposes, on the subject of the judicial system, in comparison with the level of refinement reached by legislative policy and the science of law (at the state and interstate level), in terms of protection of human rights, in the field of administrative and criminal procedural law.

Poprawna interpretacja kan. 538 § 3 i kan. 1110 z Kodeksu Jana Pawła II. Dwa zapytania z Krakowa do Papieskiej Rady ds. Tekstów Prawnych

This article presents two inquiries directed to the Pontifical Council for Legislative Texts by canonists from Cracow. The presentation in question was preceded by synthetic indication of rules for performing interpretation of the Church’s law, specifically the role of the Pontifical Council for Legislative Texts. This special Dicastery of the Roman Curia also provides answers to numerous inquiries, thus providing assistance to various authorities and individual people of faith in interpreting norms that are, basically obvious, but that raise doubts. In such cases it is used to clarify the arose doubt and contributes to correct interpretation of the existing law in practice. It arises from the provided answers that the institution of parish priest is regarded as stable, which is clearly stated in can. 522 of the Code of Canon Law. One of the elements that are a guarantor of the parish priest institution, though not listed outright by the general legislator, is a possibility to remain in the position until one reaches seventy five years of age. This also confirms that this age, that is determined in the Code, cannot be changed by the particular legislator in any valid manner. Thus, also the possible customs in a given Diocese that were introduced after John Paul II promulgated the post-conciliar code in 1983 that are in contradiction to provisions included in that Code must be regarded as erroneous, as they are not in line with can. 26. Explanation provided by the Pontifical Council for Legislative Texts in regards to the arose doubt of a possibility to grant delegation by a personal parish priest to bless canonical marriage also occurred to be important in practice. Likewise territorial parish priest, personal parish priest has identical authorizations in this matter. As it can be observed, the Pontifical Council for Legislative Texts provides very useful and competent help in solving various legal doubts that are of great importance for functioning of the Church. If even before getting competent answers a large number of canonist had similar views to those presented in explanations, which was actually demonstrated, then the answers provided by the Vatican indicate a definitive solutions to the arose doubts and at the same time encourage those who – assuredly not out of ill will –succumbed to very subjective and erroneous interpretation, to correct it.

Libertad religiosa y matrimonio

Nuestra sociedad se caracteriza por ser globalizada, plural y diversa. Ello ha tenido su reflejo en los modelos de celebración del matrimonio que reconoce nuestro ordenamiento, siendo opcional para los contrayentes la elección de su modelo: matrimonio civil regulado por el Código civil, ya sea en forma civil o en las formas religiosas de las confesiones con acuerdo o con notorio arraigo, y el matrimonio canónico. Tomando como punto de partida el marco normativo, el trabajo explica los diversos modelos y la eficacia civil de los matrimonios religiosos. Seguidamente, analiza los desafíos que plantea a nuestra sociedad y derecho algunas cuestiones, como los matrimonios interculturales o interreligiosos, poligámicos, forzados o de menores, de complacencia, etc. Finalmente, se propone la educación en los valores comunes e irrenunciables, la formación en libertad e igualdad entre todas las personas, como instrumento de prevención de los problemas y de fortalecimiento de la convivencia.

Sentence matrimoniale pro nullitate erronée et secondes noces canoniques: un apax juridique à la suite de la faculté II du 11 février 2013

The subject of the article is the 2nd point of rescript of Benedict XVI of February 11, 2013: "Before the Roman Rota, it is not possible to apply for a new referral (nova causae propositio) after one of the parties has entered into a new canonical marriage", supplemented by 2nd point, 3 rescript of Francis of August 15, 2015 to add a final clause: "provided that the decision is clearly unfair".
 In the first part of this study, the author discusses the canonical principle about a quasi-judged thing and the truth about the marriage bond, in order to conclude in the second part that both of the above-mentioned papal rescripts (the second one is more restrictive) limit the application of this principle in the cases indicated there, which prompts the question of the status of the second marriage defined by these norms.
 In the summary Author assumes that if the norm (of the rescript) is expected to last, it cannot conclude that the new "canonical" spouses are in the new sacramental marriage, but rather it should be assumed that they are in a canonically recognized, however non-sacramental, relationship.

Marriage in the Philippines After the Council of Trent (Seventeenth to Eighteenth Centuries)

The evangelisation of the Philippines took place after the Council of Trent; hence, from the beginning matrimony was governed by its canons and decrees. Until the provincial councils held in the 1770s, the Philippine Church followed the directives of the Third Mexican Provincial Council. Manuals for the administration of sacraments and for parish priests by authors based in the Philippines and published were primary references for the canonical form of marriage. Serving as a window into how Church authorities dealt with local situations and customs towards enforcement of Tridentine doctrine and law are the edicts, pastoral letters, and on occasion of diocesan visits, ordinances issued by bishops. On the micro-level, the dispensations granted for a variety of impediments and the matrimonial cases processed in the ecclesiastical court of Manila show the nuances of law and justice, taking into account pastoral considerations, personal circumstances, and local customs. They also demonstrate the understanding of litigants of the attributes of canonical marriage as well as the level of assimilation of the same. Missionary literature from the first century of evangelisation mentions common difficulties encountered in introducing Christian marriage vis-à-vis indigenous institution: the doctrine of the unity and indissolubility of marriage, the primordial requirement of consent, and the matter of impediments. The cases discussed by moral theologians indicate the prevalence of those issues well into the eighteenth century, especially in missionary districts and rural areas. Recommended citation: Camacho, Marya Svetlana T., Marriage in the Philippines After the Council of Trent (Seventeenth to Eighteenth Centuries), in: Rechtsgeschichte - Legal History Rg 27 (2019) 153-162, online: http://dx.doi.org/10.12946/rg27/153-162

Canonical Marriage and the Court of Cassation: Challenges of Reasonableness

This paper gets to the heart of the argumentative process, shown in 2014 by the Joined Chambers of the Court of Cassation, related to the inadmissibility, into Italian law, of canonical declarations of invalidity of marriage which have been stated after a long term cohabitation of the parties, as it is contrary to public policy. Outlined the cultural framework which the Italian ruling falls within, in view of a methodological choice that takes advantage of instruments like semantic analysis as part of a specific attention to the interaction between language and law, some implications of call to the principle of reasonableness have been highlighted in civil law and bilaterally. There is even no doubt that Court of Cassation’s arguments represent a challenge for canonical law to activate the means at its disposal, first of all rationabilitas, in order to provide an adequate protection to those aspects of marriage connected to divin right, like the long term cohabitation of spouses.

Dulcor Misericordiae III. Las situaciones irregulares desde el Concilio hasta Amoris Laetitia

Over the last forty years, a considerable number of theologians, moral theologians and canonists have offered many reasons in support of the de facto dissolubility of canonical marriage ratum et consummatum. They have explained that indissolubility may be a Christian ideal but not an absolute condition that makes a new marriage impossible; nor that the new marriage prevents the faithful from taking the sacraments. In response to such arguments, the reaction of the ecclesiastical magisterium has been frequent and unanimous. The popes and some key Dicasteries of the Roman Curia have adopted a clear and well-grounded position. In this regard, the doctrinal introduction to an edition of texts produced by the Congregation for the Doctrine of the Faith in 1998 offers greater appreciation and understanding of the reasons given by Magisterium and those of its critics.

La reforma del proceso canónico de nulidad del matrimonio Algunas claves de lectura desde el magisterio del Papa Francisco

This paper analyzes the most relevant aspects of the reform of the canonical process of of marriage carried out through the Motu Proprio Mitis Iudex Dominus Iesus (2015). The author proposes some keys to understand this reform from the teachings of Pope Francis, especially in the three speeches to the Tribunal of the Roman Rota. Three aspects are examined in particular: the pastoral mission of ecclesiastical tribunals; the concept of manifest nullity of the shortest process and the question of the relevance of the faith in the validity of canonical marriage. The text also refers to the last Synods of the Catholic Church on the family (in 2014 and 2015) and to the Apostolic Exhortation of Pope Francis Amoris laetitia.

Il servizio alla verità nel processo matrimoniale

Truth in the canonical marriage process avails of different meanings: factual truth, the real course of the marriage events presented for judicial examination; the doctrinal truth to be respected in the decision; truth with a legal dimension, i.e. which contextualizes the marriage in terms of the canonical discipline; and finally, as truth oriented towards spiritual salvation. The pursuit of truth is a recurring theme papal addresses to the Roman Rota, from Pius XII to Francis, and it is set out again in the Mitis Iudex Dominus Iesus: pursuit and service to the truth are key features of this latest revision of the regulation. Some institutions set out to guide this process towards truth: the appropriate understanding of contradictory positions; the primacy of favor veritatis in relation to both favor personae and favor matrimonii; the fundamental importance of moral certainty in the canonical process system; the recognition of the proof-value of the statements made by the parties involved, deferred to in a prudent and balanced way.

ANNULMENT OF MARRIAGE IN POLISH LAW AND DECLARATION OF NULLITY OF MARRIAGE IN CANON LAW – A COMPARATIVE STUDY

Annulment and nullity of marriage are two institutions that function in two separate and independent legal systems. Despite some similarities, they cannot be used interchangeably. The differences between the annulment and declaring nullityof marriage follow mainly from the fact that the canonical marriage between baptized persons is a sacrament, a lifelong and indissoluble bond. For this reason, once validly contracted, it cannot be annulled or dissolved by divorce, but only bythe death of a spouse or a dispensation from an unconsummated marriage and the privilege of faith. In the case when marriage is contracted, despite the existence of impediments to marriage, the ecclesiastical tribunal, after completing the relevant proceedings, declares its nullity whereby this judgment is of a declarative nature. In the case of annulment of marriage, the legislator provided for some restriction as to the persons authorized to file a claim, and it also listed the situations in which, even though marriage was contracted in breach of law, its annulment is not possible. Therefore, convalidation by force of law is permissible. Such validation and such restrictions have not been provided by the ecclesiastical legislator, although the convalidation of marriage is possible as long as the matrimonial consent continues and some additional conditions have been satisfied. The judgment regarding the annulment of marriage is constitutive, although the effects of annulment have retroactive effects, whereby the legislator stated that for certain relationships, the rules of divorce shall be applicable.
 Both in the state and canonical orders, there are three groups of reasons that are the basis for annulment and declaration of nullity of marriage. These are impediments to marriage, defects to the declarations of intention of the spousesand defects to the mandate to contract marriage. The individual reasons have been briefly discussed to present the differences in their understanding under canon law and state law.

The Reform of Canonical Marriage Procedures and its Effect on Spanish Law

This article analyses the impact of the 2015 Reform of Canonical Process on the recognition of civil effects to ecclesiastical judgments about marriage nullity in Spain. It departs from an historical overview of canon marriage regime in the State and the Concordats and follows with an explanation of the Spanish marriage system. The analysis focuses on the conditions required to ecclesiastical judgments to be declared adjusted to the State Law in order to have civil effects. This study takes into account the relevant jurisprudence of the Constitutional Court and the Supreme Court as well as the new Spanish legislation on the issue, including Law 29/2015, of international legal cooperation in civil matters.

Las recientes reformas legales en el sistema matrimonial español

The subject of this article is the recent change in the law regarding the celebration and dissolution of confessional marriages. Since July 2015, different kinds of marriages have been permitted in Spain in order to honour constitutional principles such as religious freedom, equality and pluralism. People in Spain may enter into civil marriage via a civil or religious process, or into canonical marriage in canonical form. Regardless of the marriage process, identical civil rights are granted on the celebration of the marriage. The religious processes are also substantially affected by the Voluntary Jurisdiction Act, amendments to the Civil Code and the Civil Registration Act. The final result is that Spanish people are allowed to be married by the rite of other religions or churches, such as Buddhism, Hinduism, the Orthodox Church, Jehovah’s Witnesses, and the Church of Jesus Christ of the Latter-day Saints (informally, the Mormon Church). Spanish law likewise fully recognizes canonical marriage, and the complete regulation thereof by ecclesiastical laws, including in relation to absolution. However, the procedures whereby civil rights are granted to ecclesiastical decisions have been profoundly altered by the recent changes in the law.

Problem rozwodu i powtórnego małżeństwa w pierwotnym Kościele do Soboru Nicejskiego włącznie

The inseparability of marriage, which originates from God’s law, underlies canonical marriage system and is a significant novum in relation to the institution of marriage functioning in ancient Jewish and Greco-Roman traditions, has been problematic since the beginning. This results from the fact that that all ancient legislation of the East: Egypt, Greece and Rome allowed to divorce and remarry. Breaking the matrimonial bond was a common practice and was not questioned by the public. Therefore, conversion of traditional marriage practices used in the above mentioned legislations was a serious challenge for Christians and very often turned to be difficult. All the more so because – in the opinion of Jean Gaudemet – the content related to indissolubilitas matrimonii found in the Gospels was not clear. Despite that fact, the message concerning the inseparability of marriage, included both in the Gospels and in the Epistles of Saint Paul, motivated the followers of the Church to raise awareness in this important matter. The issue of inseparability of marriage was expressed in the teachings of religious writers and Patristic theologians of the first centuries, both Greek and Latin. Acknowledging remarriage (excluding widows and widowers) as forbidden as long as the other spouse is alive, was especially typical. Basing on Biblical texts, religious writers and the fathers of the Church definitely disavowed remarriage by those who were already married. It is very significant that when it comes to Matthew’s clause (5, 32 and 19,9 ) it was commonly believed that a betrayed husband did not have a right to remarry. Synods of IV century were of high importance in this matter as well. The most important document of the early-Christian period, related to the issue of divorce and remarriage is canon 8 of the Council of Nicaea, established in response to the errors of Novatian’s sect, which rejected any kind of remarriage. Among conditions that had to be met to be accepted into Church was the condition to remain in the community with those who “married twice”. Because of the above mentioned conciliar Canon did not specify which bigamist it referred to (whether those who remarried after becoming a widow/widower or those who got divorced), there were questions concerning interpretation. Whereas some authors (especially Giovanni Cereti) assume that both widowers and divorced people who remarried and were accepted in the Church should be able to belong to it, the majority of the them (especially Henri Crouzel) believed that when establishing canon eight, the fathers of the Council of Nicaea meant that only widows and widowers can remarry. Later testimonies of Latin fathers of the Church of IV and the beginning of V century, who faced the issue of divorce and remarriage, constitute a significant argument supporting this view.

Teoretyczne i praktyczne zagadnienia związane z pięciodniowym terminem na złożenie wniosku do USC w celu rejestracji kanonicznego małżeństwa (art. 10 ust. 1 pkt 3 Konkordatu)

The Concordat between the Holy See and the Republic of Poland was signed in 1993, but ratified in 1998. Year 2013 marks the 15th anniversary of coming into effect of the bilateral agreement. It is a good opportunity to evaluate its provisions. The paper aims to present one of the pieces of evidence from art. 10 sect. 1 no. 3 of the Concordat, namely, the evidence for registering canonical marriage in the State Civil Registry so that the marriage would be a subject to such effects as a marriage contracted according to Polish law. From the interpretation of the provision in question and application of its norms there arise some theoretical and practical problems. The author tries to solve them and give some postulates de lege ferenda so as to make the law more clear.

Jak interpretować normy kodeksowe? Prawo kanoniczne wyrazem jedności Kościoła

It is over a quarter of a century since the promulgation of the postconciliar Code of the Canon Law. The past time is characterized by insignificant revisions of the Code legislation introduced both by John Paul II as well as Benedict XVI. Daily life of the Church provides various information that canons of the Code of John Paul II are incessantly interpreted, mainly by judiciary of the Church as well as practice of the diocesan curias and parish offices; naturally it is necessary here to emphasize the considerable and dominant role in applying law by practice of the Roman Curia. Apart from this, it is essential to add the legislative action of particular diocesan bishops and conferences of bishops, among which the Italian Bishops’ Conference must be predominantly highlighted. Particular legislation issued by postconciliar particular and diocesan synods cannot be omitted; undoubtedly widely understood postconciliar monastic law also remains a specific collection of the canon law. The article discusses the aspect of an eventual possibility of changing the retirement age of the parish priest by a legislator, mainly by pointing out how to interpret the canons of the binding Code properly. This aspect is examined not unilaterally but in relation to two issues, i.e. regarding canonical marriage process and abovementioned matter concerning the eventual possibility of changing the retirement age of the parish priest. This is a short scientific reflection on the subject of interpretation of the norms of the Code, without critical reference to particular judicial as well as administrative and legal practice.

Wpływ anoreksji (jadłowstrętu psychicznego) na zdolność osoby do zawarcia małżeństwa

In clinical practice, one can notice the increasing number of people (mostly girls and young women) who come to receive treatment on account of their anorexia. This is the result of an increasing number of patients who come for treatment and better medical knowledge of this subject. A psychological eating disorder can often be difficult to recognize. Very often this disorder is accompanied by depression, fear, or a disorder of the patient’s personality. In addition, anorexia is often a symptom of a developing state of neurosis, or a very serious somatic illness which leads the body to destroy itself.This article concerns the problem of the ability of a person who has succumbed to anorexia to contract a canonical marriage. The study begins with a consideration of Canon 1095 n. 3 of the code of Canon Law. Special attention has been given to the problem of entering into relations within the personal marital community, and also the welfare of any children and the spouses in the context of anorexia. This article is intended to help in the legal processes undertaken by the Church’s tribunals, to which comes the person who is suffering from psychological anorexia.